Tag Archives: divorce

For some time there has been a weakness in the Kansas Child Support system. Child support is calculated on the income of the child’s parents. If one parent’s income changes the child support will likely change. But, Kansas law provides a modification to child support will not take effect until at least 30 days after a party files a Motion to Modify. So the party who receives a raise has a strong incentive to keep the raise a secret. The longer they conceal the raise the longer until the Court could start any increase in child support.

The Kansas Supreme Court attempted to solve this problem by adding language to the Child Support Guidelines which allowed the trial court to issue a sanction against a party who failed to disclose a material change in circumstances. But, the language of the statue regarding child support modification did not change. A modification still cannot take effect until at least 30 days have passed since a motion was filed. This led to some confusion. Can the court calculate what child support would have been if the raise had been disclosed and set that amount as the sanction? Or is that just a back door attempt to modify child support retroactively in violation of the statute?

On August 15, 2014, the Kansas Court of Appeals addressed this issue in a case captioned In re Marriage of Johnson. In this case the father told mother he was moving from Wichita to Washington for a new job, but did not tell her he was getting a raise. In October she discovered he received a pay raise and filed a Motion to Modify. The court calculated that father’s child support should increase from about $430 per month to around $1200 per month. (Although the father’s pay rate is not listed, and the facts are somewhat murky in the Court’s ruling, it appears at least part of this increase is due to the expiration of father’s maintenance payment to mother and that the entire increase is not based on the father’s new pay). The trail court ruled that the new child support would start on November 1 and that it could not issue a sanction which had the effect of increasing child support prior to that date. The Court of Appeals overturned that decision and sent the case back to the district court. The Court of Appeals ruling makes it clear that it is permissible to issue a sanction equal to the amount of child support that should have been paid because the sanction is different than a retroactive increase in support. Furthermore, the father can be liable for mother’s attorney fees and any costs incurred in obtaining the information. However, the Court of Appeals also makes it clear the award of the sanction is discretionary with the trial court and that it is not mandatory.

As a result of this decision it is clear that concealing information about your pay raise may cost you more in the long run because you can be ordered to pay a sanction equal to the modified support, plus costs and attorney’s fees for the other party. Also, the opinion would appear to apply to any changes which impact the child support calculations including the price of health insurance or child care for the minor child or, in certain circumstance, a change in income for the party receiving child support.

Often when someone is thinking about the possibility of a divorce, the first basic question they have is “How do I choose a lawyer”? In fact, it is very common for clients, or potential clients, to tell me they do not know any attorneys because they have never needed one before. If you do an internet search for a divorce lawyer you realize there are a lot of them around. Figuring out which one is right for you is an extremely important decision.

I often recommend that potential clients interview two or three attorneys before they decide which one they want to hire. Friends can be a great referral source and can be very helpful in paring the directory listing down to a handful you want to meet with before you make a decision. But every case is unique. Ultimately you need to make the choice that will best meet your needs. So what should you look for? I think there are three areas that you should consider when interviewing attorneys: legal knowledge, personal compatibility and fees. One area which is frequently asked about is results, and I do not think this is particularly helpful at all.

1. Legal Knowledge.

Obviously you want someone who knows the law in your jurisdiction. It may be advisable to hire someone locally who knows the court system where your case will proceed. Many people have a family friend who is an attorney but who does not practice family law. They may not be able to help you with your case, but you can certainly ask them for a recommendation. The attorney you select should have recent experience handling family law cases. If they do not, but you still want to hire them, make sure they will not charge you for time spent educating themselves on family law.

2. Personal Compatibility.

Far too often this criteria is overlooked in the hiring process. But it may be the most important criteria. You need to feel comfortable talking about your marriage with your attorney. Often times the conversation will be about things you would not want to discuss with your family or closest friends. You will certainly need to be able to speak openly and candidly about financial problems you may be having. If either party had an affair you may have to discuss that matter. If you do not feel comfortable with your attorney you may have problems telling them everything they need to know. In fact, I think it is very possible you would be better off with an attorney with less experience but a better “bedside manner” than the other way around.

It is also important that the attorney’s practice philosophy meshes with your view of the case. If you are hoping to resolve the matter amicably it probably does not make sense to hire a “pit bull” type lawyer who speaks in terms of being aggressive and forcing your spouse to back down. Similarly, if you want to be hyper aggressive because of issues in the case which need to be explored, going to an attorney who focuses on collaborative law or who views themselves as a problem solver more than a street fighter will probably not satisfy you.

3. Fees.

Many attorneys charge on an hourly basis so it is impossible to predict with certainty how much a particular case is going to cost. However that does not mean you cannot get some basic information. How much is the initial retainer? How much does the lawyer charge per hour? DO other attorneys or staff members bill you for their time? If so, what are their rates? Do you pay for copies, mileage, phone calls, faxes and other incidentals? If the attorney is a great fit under the first two criteria, but their fees are out of your price range, you may want to keep looking. You have to be able to pay your bills and support your family long after the divorce case ends.

There are some law firms, including my office, which will represent clients on a flat fee basis. Under this model you pay a fixed price for the divorce, regardless of the time involved. Obviously this solves some problems associated with the traditional fee per hour model. It allows you to know upfront how much you will pay. But that does not mean it is the right model for you. Again, meeting with two or three attorneys can help you find one who will work with you in the way you want your case to proceed.

4. Don’t focus on past results.

An obvious question many people ask is “how often do you win”? This seems like a good way to gauge the attorney you are interviewing. But it has a serious problem. Namely, it is almost impossible to define “win” in a family law case. I have personally seen a case where mom wanted to limited dad to only a few hours of supervised parenting time a week and dad wanted 50-50 parenting time. These two people were about as far apart as the could be on the issue of parenting time. The judge gave mom more custody than dad initially but placed no limits on dad’s parenting time and ordered that parenting time would move to 50-50 in about a year. Both sides where mad at this outcome because neither got what they wanted. So who won? This happens in almost every case – neither side gets everything they want but each side gets some of what they were after. Most family attorneys feel that there is no “winning” these cases, especially with young children involved. But this also means it is easy to manipulate statistics about your results. In the example above either party could claim they “won” because they got more than the other side offered. Both sides could also claim they “lost” because they got less than they demanded. Without a clear guide as to what is a win or a loss, the stats become entirely meaningless.

Occasionally someone will ask me about the possibility of getting an annulment instead of a divorce. This is an area where the “word on the street” differs greatly from the actual law. For example, it is common for people to have heard that an annulment is granted if the parties have been married for only a short time. Also, there is a common perception that annulment will be faster and/or easier to get than a divorce. In Kansas, however, annulments are not based on the duration of the marriage and they are not necessarily easier or faster. In fact, because you must prove you meet the required grounds for an annulment, it may be harder to get than a divorce in some cases.
Kansas allows for a marriage to be annulled in two circumstances – if the marriage was void (it violated some legal prohibition) or if the marriage is voidable (some material fact was unknown to one or both parties which, if known, would have led that party to decide against the marriage). If the marriage is not void or voidable, the parties cannot get an annulment not matter how short the marriage.
A marriage is void if there is a legal prohibition against the marriage at the location of the marriage itself. By way of example, it is presently illegal for homosexual couples to get married in Kansas. If a gay couple were to be married here the marriage would be void and the court would grant an annulment. However, if the couple were married in a jurisdiction where gay marriage was legal, the marriage would not be void and Kansas could not grant an annulment on that basis. Other examples of void marriages include close relatives (siblings, cousins, etc.); under age parties or one of the parties being married to someone else (bigamy).
A marriage is voidable if one or both parties did not know a material fact that would have led them to decide against being married. If the husband lies about his financial status and ability to provide for his wife when in fact he is a deadbeat he wants to swindle her family’s money that may be an example of a marriage induced by fraud. Another example is if the wife, prior to the marriage, claims she is pregnant with the husband’s child knowing that either she is not pregnant or the child belongs to someone else that is also induced by fraud. If the court finds the marriage was induced by fraud it must grant the annulment. On the other hand, if there is not a fraud by a only a mistake in fact, then the court may grant the annulment but is not required to under Kansas law. An example of this situation is if one party has a serious, undiagnosed mental illness which only became apparent after the marriage. Alternatively, if the wife-to-be was pregnant at the time of the marriage and both parties believe it was husband’s child, but it turned out to be someone else’s, that would be a mistake of fact and not fraud.
The burden to prove the grounds are met is on the party seeking annulment. This is often a higher burden than what is required to get a divorce. As a result it is incorrect to think of annulment as an easier way to dissolve the marriage- it is not available in most cases and it can be hard to prove in the cases where it does apply. If you have questions about whether you are eligible for an annulment, you should consult an experienced family law attorney in your area to discuss your case.

A common divorce “myth” holds that a child can pick where they want to live, if the child is old enough. Until a child turns 18, however, this is not true. The divorce court has to create or approve any custody arrangement or parenting schedule. By law the divorce court must determine if a schedule is in the child’s best interest before the schedule can be approved.

In Kansas, the “best interests of the child” test requires the divorce court to consider several factors. First, if the parents of the child reach an agreement on a custody or parenting plan, the divorce court is required to presume the agreement is in the child’s best interests. The presumption can only be overcome if the divorce court makes specific findings the agreement is not in the child’s best interests. In other words, the parents have first say over any custody or parenting plan. If the parents agree on a plan the divorce court will usually approve it. Only if the divorce court specifically finds the custody or parenting agreement does not serve the child’s best interests can the judge reject the agreed plan

If the parties cannot reach an agreement the divorce court has to decide on an appropriate parenting or custody plan. Kansas divorce law lists eleven factors for the courts to consider. The list is not exclusive, the divorce court can consider other relevant factors if appropriate. However, these eleven factors will be considered in every Kansas divorce or paternity case when parenting time or custody is in question. The factors are:

Length of time the child has been cared for by anyone other than the parents.

The parents’ wishes.

The child’s wishes.

Child’s relationship and interaction with parents, siblings and anyone else who can significantly affect the child’s best interests (for example, step-parents, roommates, etc.).

Child’s adjustment to home, school and community.

Willingness and ability of each parent to respect/appreciate bond between child and the other parent, and to allow for a continuing relationship between the other parent and the child.

Any evidence of spousal abuse.

Whether either parent is required to register with the sex offender registry in Kansas or another jurisdiction.

Whether either parent has been convicted of child abuse.

Whether either parent is living with anyone who is required to register with the sex offender registry in Kansas or any other state.

Whether either parent is living with anyone who has been convicted of child abuse.

The sixth factor on the list can be very important and very difficult for parties in a hotly contested divorce case. By law the divorce court is required to examine how the parties are able or unable to work together for the best interests of their child. If one party refuses to cooperate with the other, the divorce court can determine that the best interests of the child are harmed and can adjust parenting time accordingly.

I am frequently asked questions about how one spouse’s bad behavior (adultery, alcoholism, abuse, etc.) impacts a Court’s decision to divide the property and debts in a divorce. There has also been some news regarding a proposal being discussed to reconsider Kansas’s “no fault” divorce system. I thought it might be helpful to discuss what “no fault” means and how it relates to the final outcome in a Kansas divorce.

Kansas divorce law applies “no fault” rules in two ways. First, Kansas does not require one party to prove the other caused the divorce by behaving badly. In other words you do not have to show your husband or wife was abusive or had an affair before you can get a divorce. Instead, Kansas requires one spouse state the parties are incompatible. (Kansas Statutes Annotated 60-1601). The law does allow you to allege failure of one side to “perform a material marital duty or obligation” but you are not required to and very few divorce cases are filed on this basis. Kansas law also states the grounds for divorce should not be detailed in the court documents – you should not air your dirty laundry in the court file. Instead the reason for the divorce should be stated “as nearly as possible in the general language of the statue, without detailed statements of fact.” (K.S.A. 60-1604(c)). Even if one side wrote a detailed list of all the reasons the divorce is the other side’s fault, Kansas law keeps the list out of the Petition for Divorce.

Second, Kansas divorce law generally does not consider bad behavior when dividing assets and debts. Instead the divorce court divides the family’s assets and debts based on the length of the marriage, the ages of the parties and their current and future ability to earn a living, etc. The division of assets and debts in a divorce case is required to be “just and reasonable”; it is not used to punish either side for bad behavior. (K.S.A. 60-1610(b)(1).

There is an exception to the no fault division of assets and debts in a Kansas divorce. If either side has caused a “dissipation of assets”, or has wasted money or given away property, the Court can take that into consideration. For example, if the husband has an affair the Court will not usually consider this bad behavior when dividing property in the divorce case. But if the husband bought expensive gifts for his girlfriend he wasted marital funds and the Court can use that in the divorce. Continuing the example, if the husband bought his girlfriend a car for $25,000 the divorce judge could give the wife the first $25,000 of property in the case and then divide the rest evenly. The husband’s bad behavior, wasting $25,000 of marital funds on his girlfriend, is used by the court to give the wife an extra $25,000 in the divorce to make the total distribution just and reasonable.

I hope this post has helped explain the two ways Kansas uses “no fault” in it divorce laws.